Open UKLSR Volume 1(2) - Uklsa

72
Battling Bolam
life due to a severe degenerative form of variant Creutzfeldt-Jakob disease (vCJD) 43 ,
from which there was no hope of recovery. An experimental treatment had become
available and the question was whether it was in the patients’ best interests to
administer the untested treatment. It was defined as untested, because it had not been
tested on humans. On laboratory animals, however, it had produced good results. It
was felt in applying Bolam in a permissive manner to allow the use of an untried
therapy, both the interests of society as a whole and that of the patients should be
considered; the test should not be allowed to hinder medical developments. Dame
Elizabeth stated: ‘...the medical evidence...consistent with the philosophy that
underpinned the test, it would not in itself have been irresponsible or unethical to give
the treatment to the patients...’ 44 Thus her opinion was that Bolam should not hinder
medical advances but, rather, its use could promote the development of the ‘new’,
particularly if society as a whole could benefit. She further elaborated on this issue
with regard to vCJD in that apparent futility in treatment may in fact be beneficial to
all.
III(d) – The standards applicable
The ruling in Bolam effectively allowed the medical profession to determine the
standard of care and the conditions which decided such. The doctors were ‘policing’
their own profession, akin to the police investigating complaints against serving
officers before the inception of the Independent Police Complaints Commission. 45
Clearly, this was unsatisfactory, yet the test was applied and endorsed by the House of
Lords in Whitehouse v Jordan 46 , Sidaway v Bethlehem Royal Hospital Governors 47 ,
and Maynard v West Midlands Regional Health Authority 48 , although in each case the
Bolam test was applied in a different context. In Whitehouse, the House of Lords
considered its application to treatment; in Sidaway to disclosure of risk and in
Maynard to diagnosis. The multiplicity of application illustrates the extent to which
Bolam was utilised by the courts when considering allegations of medical negligence
and demonstrates the authority that was accorded to the ruling in Bolam. It was a
judgement that coloured generations of cases and impeded the advancement of the
law with regard to clinical negligence.
43 Creutzfeldt-Jakob disease is one of a group of neuro-degenerative disorders characterised by a
rapidly progressive dementia leading to death. The variant form is seen in young people and is
associated with eating contaminated beef. It progresses inexorably to death at a slower rate than the
classic form. There is no cure available.
44 Phil Fennell ‘Medical Law’ All England Annual Review/2003/Medical Law at 19.17
45 Established by the Police Reform Act which came into force in April 2004.
46 [1981] 1 All ER 267. As a result of a traumatic forceps delivery, a baby sustained brain damage. The
obstetrician was sued for medical negligence but he had made a clinical judgement which unfortunately
was flawed, but he had not acted negligently.
47 [1985] AC 871. A patient underwent spinal surgery but was not informed of the 1% risk of paralysis
and permanent damage; unfortunately she sustained both. The doctors involved were found not guilty
of being negligent in their duty to inform of all risks involved.
48 [1985] 1 All ER 635. Two surgeons operated on a woman in order to determine a diagnosis.
Unfortunately the patient sustained permanent damage to her vocal cords which resulted in speech
impairment. Held that the doctors had acted in a reasonable manner.